In R v Taylor 2012 NLCA 33, the Newfoundland and Labrador Court of Appeal examined whether a judge can draw an adverse inference from evidence that was not disclosed to the police or the prosecution. The majority argued that on the facts of this case it was a material error and directed a new trial.

The Crown has appealed to the Supreme Court of Canada (“SCC”), who will hear the case this month.

Background

In July 2003, Mr. Taylor called the complainant to his shed two days before her seventh birthday. The complainant testified that Mr. Taylor locked the shed door and touched her inappropriately for about ten seconds. He then unlocked the door, made her promise not to tell anyone what happened, and then gave her a water gun as a birthday present.

Mr. Taylor was convicted of sexual assault contrary to section 271(1)(a) of the Criminal Code. Mr. Taylor testified in his defence that the event occurred during the summer of 2004 because that was the year the warranty on his truck ran out. He testified that his son, Stephen, was working on the truck near the shed when the incident allegedly happened. Mr. Taylor said that the complainant had only stepped inside the shed for a few seconds when he gave her the water gun and she left, excited about the gift.

Stephen testified at trial that he had been working outside the shed during the alleged incident, and that the shed could not have been closed because he had an air hose running out from inside the shed. He also testified that the complainant was excited about the water gun and that she returned to spray water on the truck.

The trial judge rejected Stephen’s evidence because he concluded that it was a fabrication when Stephen “did nothing” with the evidence:

“Surely if Stephen Taylor had information that could assist his father, who he testified that he was very close to, he would’ve gone to the police with it or he would’ve gone to a lawyer, or he would’ve gone to the prosecutor’s office, or he would’ve gone to somebody to get help for his father with what he knew. Why would he put his father through that…[he had evidence] yet with that information he did nothing.”

Because Stephen had not contacted the police with the information when his father Mr. Taylor was charged, the trial judge drew an adverse inference from the omission and characterized the evidence as being “self serving and not believable” and “a clumsy lie.”

Mr. Taylor appealed to the Newfoundland and Labrador Court of Appeal alleging that the trial judge had erred in the manner he dealt with Stephen’s evidence.

No Duty to Disclose, No Adverse Inference Allowed

The majority said that Stephen did not “do nothing” with his evidence: he gave the information to defense counsel. The majority concluded that there was “no basis on which to infer or conclude that Stephen would or should have gone instead to the police or the prosecutor” and that the trial judge erred in concluding that Stephen “did nothing” with his evidence.

The majority then reviewed whether defence counsel had a duty to disclose the evidence to the prosecution and concluded that they did not. Relying on the ratios of the SCC in R v Stinchcombe1991 SCC 45 and R v Brown2002 SCC 32, which state that the prosecution has no duty to assist the prosecution nor make full disclosure, the majority then considered whether the evidence fit into the alibi exception to the general rule.

The failure to disclose the defence of an alibi in a timely manner may allow the judge to draw an adverse inference (R v Chambers, [1990] 2 SCR 1293). However, in this case Stephen’s evidence did not constitute an “alibi.” Alibi evidence generally establishes the impossibility the accused could have committed the offence; for example, being in a different location than where the offence occurred. In this case, Stephen testified that he was in the same location as Mr. Taylor and that the shed door could not have been locked, but this did not preclude the commission of the offence by Mr. Taylor. Because this was not alibi evidence, it did not have to be disclosed to the prosecution, nor could an adverse inference be drawn because of this.

The majority concluded that by rejecting Stephen’s evidence out of hand, the trial judge failed to make a proper assessment of the defence evidence. The convictions were set aside and a new trial was ordered.

Dissent – Judicial Discretion and The Reasonable Expectation of Disclosure

Justice Hoegg agreed with the majority that Stephen’s evidence was not alibi evidence and that the defence had no duty to disclose the evidence to the prosecution. However, Hoegg disagreed with the majority that the trial judge had not properly assessed the evidence and that a new trial was necessary.

In Hoegg’s opinion, the trial judge had reasonable grounds for favouring the complainant’s testimony over Stephen’s and that even though there was no obligation on Stephen to notify anyone about his evidence, it does raise a question going to the weight of the evidence:

“In circumstances where that evidence could reasonably be expected to have been disclosed earlier, [the witness] runs the risk of it being considered to be recently fabricated. This is what happened here. Stephen had the opportunity to address the Crown’s insinuation of recent fabrication for the Crown attorney questioned Stephen as to why this evidence was just coming forth at trial, and Stephen explained his reasons. The reasons did not ring true to the trial judge. The trial judge found Stephen’s evidence wanting and rejected it, as he is entitled to do.”

Hoegg concluded that the trial judge had properly assessed all the evidence, including Stephen’s, and that it did not raise a reasonable doubt of Mr. Taylor’s guilt.

Conclusion

The rejection of suspicious evidence without properly assessing its validity wrongfully infringes the accused’s right to a defence. However, this case turns on the characterization of judicial discretion. Did the trial judge adequately and properly assess the evidence, with the end result being he did not think it should be afforded much weight? Or did the trial judge reject the evidence out of hand without properly considering it, with the same result?

The strong dissent also has a practical purpose – surely it would be better for possible exculpatory evidence to be disclosed at the time of being charged with an offence, rather than withholding it until the trial date. Whether the SCC will uphold the majority’s reasoning or side with the dissent remains to be seen.